DoJ to use secret code in leak trial

Federal prosecutors in the Obama administration’s Justice Department are planning to use an unusual courtroom tactic to keep secret evidence from the public in the leak-related trial of a former senior National Security Agency official set to start next month in Baltimore.

The government recently disclosed plans to use a “silent witness” procedure in the prosecution of Thomas Drake, who’s accused of illegally keeping classified documents at his home, lying to FBI agents investigating the case and destroying evidence. The procedure involves keeping the courtroom open but referring to sensitive evidence in a code that only the judge, lawyers, defendant and jury can decipher.

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“It’s a process in which everyone except the public knows what’s going on,” said Jay Ward Brown, a media lawyer in Washington. “The evidence is presented in a public courtroom, but none of the participants are able to talk about what they’re reading out loud or show the evidence, yet it’s taking place in a so-called open court proceeding.”

The indictment returned against Drake last year claims he shared classified documents with a journalist, who was not named but is identified in defense filings as Siobhan Gorman, at the time a reporter for The Baltimore Sun. Gorman wrote articles in 2006-07 about a dispute within the NSA over Trailblazer and Thinthread, two competing technology systems the spy agency used to track communications involving suspected terrorists.

Ward said the request to shield some evidence from the public sets up a clash between the prosecution and Drake’s defense team as well as — potentially — the news media.

“What makes this kind of issue hard is it requires the court to engage in a balancing of fundamental rights belonging to several different parties,” he said. “One ... is the government’s right to keep secret classified national security information, another is the defendant’s constitutional right to a fair trial, and [a third] is the public and the press’s right to observe trials. That’s particularly important when criminal prosecutions involve controversial issues of public concern like this one does.”

Prosecutors’ requests to use the secret-evidence procedure in other trials have at times been hotly contested and prompted conflicting legal rulings.

In 1988, a federal judge rejected a government request to present silent witness testimony during National Security Council aide Oliver North’s trial on charges of lying to Congress. In 2005, however, such evidence was permitted at a trial of an Al Qaeda operative accused of plotting to kill President George W. Bush.

In 2007, the prosecution’s request to use a similar procedure extensively in the prosecution of two pro-Israel lobbyists accused of receiving and disclosing classified information was sharply curtailed by a judge who said the procedure would amount to a partial closure of the trial and could confuse jurors. The government later dropped that case.

Ward, whose firm does work for POLITICO, said he’s unaware of any appellate-level precedent that approves or rejects the silent witness procedure, but he added that the amount of information to be kept from the public could be critical to whether the tactic is constitutional or even practical.

With the trial set for April 25, prosecutors and Drake’s defense lawyers have jockeyed for advantage in motions filed with Judge Richard Bennett in recent days.

In one filing, Drake’s lawyers complained that prosecutors have known for a year or more that an allegedly classified document found at Drake’s home was posted on an NSA Intranet site as unclassified but that the defense only recently learned of it.

Prosecutors responded Monday to a defense request to throw out that count. The response was classified and filed under seal.

Prosecutors are trying to stop the defense from showing Gorman’s articles to jurors and arguing that Drake’s conduct wasn’t criminal because he was trying to blow the whistle on government waste.

Bennett has not yet ruled on the motions. Some lawyers doubt that the disputes will be resolved in time for Drake’s trial to begin as scheduled.